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US Customs and Border Protection Investigated for Warrantless Use of Cell Phone Location Data

December 7, 2020

Ars Technica reported on December 3 that the Department of Homeland Security (DHS) inspector general is investigating the government's use of cell phone location data obtained without search warrants.

US Customs and Border Protection (CBP), a division of DHS, "has paid a government contractor named Venntel nearly half a million dollars for access to a commercial database containing location data mined from applications on millions of Americans' mobile phones," five Democratic US senators said in October.

"CBP is not above the law and it should not be able to buy its way around the Fourth Amendment," the senators told Inspector General Joseph Cuffari while requesting an investigation into "CBP's warrantless use of commercial databases containing Americans' information, including but not limited to Venntel's location database."

Cuffari granted the request for an investigation, telling the senators that his office will "initiate an audit that we believe will address your concerns" in a letter sent November 25 and made public by the Democratic senators yesterday. The senators who requested the investigation are Ron Wyden (D-Ore.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Edward Markey (D-Mass.), and Brian Schatz (D-Hawaii).

"The objective of our audit is to determine if the Department of Homeland Security (DHS) and it[s] components have developed, updated, and adhered to policies related to cell-phone surveillance devices," Cuffari wrote. The audit will also examine DHS' use of "open source intelligence," which includes "information provided by the public via cellular devices, such as social media status updates, geo-tagged photos, and specific location check-ins," Cuffari told the senators.

The American Civil Liberties Union (ACLU) sued the DHS, CBP, and ICE (Immigration and Customs Enforcement) on December 2, demanding the release of "records about their purchases of cell phone location data for immigration enforcement and other purposes." You can find more detail on Venntel's sales of location data to US agencies in a Vice article published on December 3, titled "How an ICE Contractor Tracks Phones Around the World."

Major cell phone carriers used to sell customers' real-time location data to third-party data brokers without customer consent, leading to fines proposed by the Federal Communications Commission. The carriers say they have stopped the practice, but third-party brokers still sell location data obtained from applications installed on phones.

A 2018 Supreme Court ruling said that "the Government must generally obtain a warrant supported by probable cause before acquiring" cell-site location information created and maintained by wireless carriers. But because DHS is buying location data from third-party sellers instead of carriers, DHS lawyers claim that the ruling doesn't apply.

Also, the Secret Service buys location data that would otherwise need a warrant.

"Such data is widely used by the US military and intelligence agencies for intelligence gathering overseas, according to public records and people familiar with the matter, but those agencies are largely barred from domestic monitoring," the Wall Street Journal wrote. "However, law-enforcement agencies have concluded that they don't need a warrant to obtain location data on phones within the US because consumers technically can opt out of such location tracking and the data is available for purchase on the open market." The Treasury Department's inspector general is already "probing the Internal Revenue Service's use of the same data for criminal enforcement," and "several congressional investigations are underway," the Journal wrote.

Democratic senators have said that the DHS investigation must be a thorough one. "If federal agencies are tracking American citizens without warrants, the public deserves answers and accountability," Wyden said. "I won't accept anything less than a thorough and swift inspector general investigation that sheds light on CBP's phone location data surveillance program."

"I'm glad that the Inspector General agreed to our request to investigate this potentially unconstitutional abuse of power by the CBP because we must protect the public's Fourth amendment rights to be free from warrantless searches," Warren said.

CBP also buys access to license plate-scanner information, allowing it to get the data without warrants.

While I know privacy is a quaint concept these days, this kind of surveillance goes beyond the pale. I am hopeful that a serious study of these practices is concluded shortly.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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